Not-So “Intellectual” Property: Part I

The term “intellectual property rights” is an unfortunate (but deliberate) misnomer. After all, what kind of regressive would dare oppose such a noble-sounding concept? Blinded by the high-minded diction of the elite, few individuals stop to question whether or not an “idea” can be property at all, or if this “property” ought to be protected along with other fundamental rights. These assumptions are not immediately obvious, yet this premise is all but axiomatic in IP debates. The result of such word choice has led to decades of arguments and discourse built upon the foundation of unsubstantiated rhetoric.

Intellectual property law was never meant to directly bolster the financial well-being of the individual. Rather, the Constitution gives Congress the right to prevent copying, but only to bolster innovation. In fact, the words “intellectual property,” “copyright,” and “patent” never appear in the Constitution. The so-called “Intellectual Property Clause” (or, more accurately, Article I, Section 8, Clause 8) consists of one sentence which allows Congress to “promote the progress of science and useful arts” by “securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” 

Clearly, the benefit of the inventor or creator was meant to be a means, not an end. In fact, this conceptual framework governed the former half of the Industrial Revolution. Orwellian rebranding of government-issued monopolies originated later, in the nineteenth century. Inventors, wanting to soften the sting of “privilege” (a decidedly less flattering word), decided to co-opt the connotations established by the likes of Locke and Jefferson through a new word: property. And as such, the notion of “intellectual property” was born.

Nonetheless, the issue does not simply lie in semantics; patent litigation is a broken process that actively stifles innovation. Because of the broadening of IP protection, patent offices are often overwhelmed with an influx of new applications. Bureaucrats issue many patents with little examination, glazing over comparisons to previously granted documents. Whether intentional or unintentional, overly broad patents frequently make it past the approval process. Such carelessness is great news for so-called “patent mill” law firms, which can effectively act as patent trolls — buying overly broad patents and threatening litigation against tech firms. Often, entertaining these patent trolls in court (even if their claims are obviously unfounded) is more costly than paying settlements to the patent mills. Even if such a conundrum is a commentary of the legal system at large, strong IP laws create an issue that is manifestly unnecessary. 

At any rate, such a system clearly does not “promote the progress of science and useful arts.” Indeed, American politicians seem to have abolished this framework altogether. Copyright protections began with the Copyright Act of 1790, which gave authors the exclusive right to publish “maps, charts and books” for a 14 year term (renewable once). Several “copyright acts” later, 14 years changed to lifetime plus 70 years. Clearly, there is no incentive to innovate after death; these extensions imply some motive beside fostering innovation. Rather, these protections serve only to line the pockets of wealthy media conglomerates that have historically conducted extensive lobbying to craft our laws to their liking.

It is well-known that Hollywood firms and large content creators (like Disney) push for strengthened and extended IP protections. After all, they would perhaps benefit the most from the exclusive right to produce and profit from “original” content. The word “original,” of course, used to ironically describe the rehashed storylines of the public domain. Disney’s smash hit, Frozen, was based upon an 1845 fairy tale by Hans Christian Anderson, The Snow Queen. Fantasia borrowed heavily from Bach, Tchaikovsky, and Beethoven. The Jungle Book was based on an 1894 novel by Rudyard Kipling. The list goes on. Chances are, if Disney “made it,” it was heavily borrowed from another, lesser-known source. 

Such examples are not meant to paint Disney as a no-good, cheating company. Rather, Disney should be viewed as the ultimate public-domain-based success story. Creative innovation does not occur in a vacuum, and the ability to borrow from and build upon previous works is just as vital in the humanities as it is in STEM. However, under current IP law, there can never be another Disney Corporation. Much of Disney’s work, however derived, has not entered the public domain, and it is unlikely that it will before the storylines fade from public consciousness. 

Perhaps it would be detrimental for Disney to lose its exclusive right to produce its movies and fairy tales. The status quo is framed around concentrated ownership of creative material, and any alteration to this system would necessitate a shift in consumer expectations. The ability to more heavily draw from the public domain would lead to more decentralized ownership of intellectual property, as no one entity could foment an artificial monopoly. A decentralized model appears to resemble the ideal that Disney had in mind through their liberal use of inspiration; both Disney and IP cynics hold that fairy tales (or any “stories” for that matter) should be categorized as a sort of common heritage. But if this model is the ideal, is intellectual “property” property at all? Furthermore, would classifying it as such bolster innovation? At least for technological patents and creative copyrights, the answer seems to be no. 

Clearly, the logistics of “ownership” of intangible material are complicated. Therefore, it is disingenuous to use the word “property” to brand government monopolies as a fundamental entitlement, as the act of labeling ideas with the aristocratic label of “intellectual property” does not make it so. Until our vocabulary and connotations change, we will continue to allow lawmakers to solidify a fourth addition to Locke’s life, liberty, and property: monopoly.

Categories: Law

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